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The Cost of Discrimination

Jersey will be introducing laws against racial discrimination next year. Lindsay Edwards – Thatcher of TM Legal Services explains why employers need to start preparing now.

After years of discussion, the States of Jersey are set to pass a racial discrimination law, which is due to come into effect around September 2014.

Employers will be hugely affected people by the new law and need to fully and carefully familiarise themselves with it and its consequences, which will include increased administration and heightened chances of complaints.

Looking at the law, there are, in short, three new types of offence which could lead to prosecution or complaints being made against a company:

Direct discrimination:
A person discriminates if on “racial” grounds or some other protected characteristic he treats that other person less favourably than he treats or would treat other persons. There is no justification defence to direct discrimination except direct age discrimination.

Indirect discrimination:
Where a practice/criteria adversely affects a person of a particular group, by placing an ostensibly gender/race neutral barrier in the way of progress by a particular class of person (gender/race) which the claimant in particular cannot overcome, even when all employees are treated the same. It cannot be shown to be a proportionate means of achieving a legitimate aim. This is the more common form of discrimination.

Subjecting an individual to a detriment because they have a) made a complaint under the legislation and/or b) alleged a person has committed a prohibited act.

The new law is set to have no ‘lead in period’ during which employers would have had time to adjust to new procedures and protocols. This means that as an employer, you will have to start changing processes now in order to be prepared for the new legal framework. It’s imperative that you begin this immediately and avoid the risk of breaking the law once it is too late.

Employers must not make the mistake of believing that the new law will have no effect on them. Just one element of the recruitment process alone will have enormous consequences: dealing with unsolicited CVs.

In the current economic climate, many employers receive CVs from candidates in the hope that a position may exist. Regardless of whether or not a job actually exists to apply for, the discrimination law requires that employers be ready and prepared to explain why an individual has not been hired on any given occasion, even when the application was not requested.

If an employer does not have an answer, they can be accused of discrimination, in which case a claim will be made against the employer at a tribunal. It is the employer’s responsibility to defend themselves, which means that keeping notes on each job applicant, giving reasons as to why they were not suitable for a job will be very valuable.

Another effect of the racial discrimination law is the fact that employers will no longer be able to place a job advertisement asking that the applicant has a GCSE in English or Maths, because this could be counted as racial discrimination against anyone who was not educated in Britain.

Employers have to get used to this new way of working which will include more paperwork and administration. If they are not prepared, they will quickly find themselves in trouble and the implications could be costly. Not only will it cost the employer in time spent preparing and attending the tribunal, but the tribunal, at its discretion, can award fines of up to £10,000 against any company that is found to have breached the law.

Lindsay Edwards-Thatcher is an English solicitor who, through TM Legal Services, provides specialist contentious and non-contentious employment law advice to employers in Jersey. To compliment this experience, Lindsay is also an ADR accredited mediator.

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